The Court held that a modification application seeking to introduce garden dining for up to 96 patrons on lawn areas, redistribute patron numbers flexibly across a site (including outside buildings), and extend operating hours was not substantially the same development as the original consent, which allocated specific patron numbers to specific rooms and did not approve outdoor dining. The Court rejected the argument that garden dining was ancillary to an approved restaurant/function centre use, particularly where it was not exempt development under the Codes SEPP and had been specifically excluded from the approved plans despite appearing in earlier superseded versions. The Development Control Order was revoked on the basis that the Second Modification Consent (on which the compliance order relied) was itself set aside, rendering the compliance order inappropriate in form.
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